VARGAS PENA, CARLOS ANTONIO

524 W184TH ST APT 1A

NEW YORK, NY 10033-0000
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Vrginia 220. I
OHS/ICE Ofice of Chief Counsel - NYC
26 Federal Plaza, Room 1130
New York, NY 10278
Name: VARGAS PENA, CARLOS ANTO A 040-524-349
Date of this notice: 4/29/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Holmes, David B.
Sincerely,
|O tA
Donna Carr
Chief Clerk
schuckec
Userteam: Docket
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Carlos Antonio Vargas-Pena, A040 524 349 (BIA Apr. 29, 2013)
l.S. Department of Justice
Executive Ofce fr Immigation Review
Decision of the Board oflmmigration Appeals
.
Falls Church, Virginia 22041
File: A040 524 349 - New York, NY Date:
In re: CARLOS ANTONIO VARGAS-PENA a.k.a. Carlos Pena
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Pro se
ORDER:
APR
2
9 2013
On September 7, 2012, an Immigration Judge ordered the respondent removed afer he filed
to appear at a scheduled hearing. The respondent seeks to challenge this decision by fling an
appeal with the Board, rather than by fling a motion to reopen with the Immigration Judge in
accordance with section 240(b)(5)(C) of the Immigration and Nationality Act,
8 U.S.C. 1229a(b)(5)(C).
The record would ordinarily be retured to the Immigation Court without frther action, as we
are precluded by the Act fom considering such an appeal. See Matter of Guzman, 22 I&N Dec.
722 (BIA 1999).
However, under the circumstances presented by the respondent's case, the appeal will be
constued as a motion to reopen fled under section 240(b)(5)(C) of the Act. That is, the cover
letter transmitting the Immigration Judge's in absentia decision instructs the respondent to
challenge the decision by fling an appeal with the Board. At the same time, the letter instructs the
respondent to fle a motion to reopen with the Immigration Judge.
On or about October 15, 2012, the respondent attempted to fle a motion to reopen with the
Immigration Judge by fling a Form I-290B, "Notice of Appeal or Motion". The respondent
sought reopening due to a claim that he is mentally and physically ill. The Immigration Court
retured the For I-290B to the respondent on October 17, 2012. The cover letter fom the
Immigration Court again instructed the respondent to fle an appeal with the Boad. At the same
time, the letter instructed the respondent to fle a motion to reopen with the Immigration Court
with a fling fee or request fr waiver of the fling fee.
The respondent atempted to fle an appeal with the Board on October 11, 2012, but it was
rejected fr fling defcts. The respondent filed an appeal on November 15, 2012. On the Notice
of Appeal, he again claims that he is ill.
Given the fcts of this case, the fle is retured to the Immigration Court fr adjudication of the
respondent's motion.
FOR THE BOARD
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Carlos Antonio Vargas-Pena, A040 524 349 (BIA Apr. 29, 2013)
IN THE MTTER OF:
4
UITED STATES DEPATNT OF JUSTICE
EXECUTIV OFFICE FOR IMIGRTION REVIEW
IMMIGRTION COURT
NEW YORK CIT, NEW YORK
DATE: Sep 7, 2012
VARGAS PENA, CARLOS ATONIO
CASE NO. A040-524-349
RESPONDENT IN REMOVAL PROCEEDINGS DECISION
Jurisdiction was established in this matter by the filing of the Notice to
Appear issued by the Department of Homeland Security, with the
Executive Office for Immigration Review and by service upon the
respondent. See S C.F.R. l003.l4{a), 103.5a.
The respondent was provided written notification of the time, date and
location of the respondent's removal hearing. The respondent was also
provided a written warning that failure to attend this hearing, for other
than exceptional circumstances, would result in the issuance of an order of
removal in the respondent's absence provided that removability was established.
Despite the written notification provided, the respondent failed to appear
at his/her hearing, and no exceptional circumstances were shown for his/her
failure to appear. This hearing was, therefore, conducted in absentia pursuant
to section 240{b) (5) {A) of the Immigration and Nationality Act.
'
At a prior hearing the respondent admitted the factual allegations
in the Notice to Appear and conceded removability. I find
ovability established as charged.
The Department of Homeland Security submitted documentary
evidence relating to the respondent which established the truth
of the factual allegations contained in the Notice to Appear. I
find removability established as charged.
I further find that the respondent's failure to appear and proceed with
any applications for relief from removal constitutes an abandonment
of any pending applications and any applications the respondent may have
been eligible to file. Those applications are deemed abandoned and
denied for lack of prosecution. See Matter of Pearson, 13 I&N Dec. 152
{BIA 1969); Matter of Perez, 19 I&N Dec. 433 {BIA 1987); Matter of R-R,
20 I& Dec. 547 {BIA 1992).
.
'i

ORDER: The respondent shall be removed to ." .. ( ..c.cr '

alte::ntiue e on the charge{s) aizC}(2 A (. ()
-1
contained in the Notice to Appear.


BABA . NE
cc: Assistant District Counsel
Attorey for Respondent/Respondent
Immigration Judge
Zl
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t